2018-00227481-CU-OR

Lydia Sandejas vs. Ocwen Loan Servicing, LLC

Nature of Proceeding: Motion to Strike the 1st Amended Complaint and Dismiss Action

Filed By: Whittaker, Keola R.

Defendants Ocwen Loan Servicing, LLC and Deutsche Bank National Trust Company, as Trustee for DSLA Mortgage Loan Trust 2005-AR6 DSLA Mortgage Pass-Through Certificates, Series 2005-AR6’s (collectively, “Defendants”) motion to strike Plaintiff’s First Amended Complaint and dismiss the action with prejudice is DENIED.

On August 23, 2018, this Court granted Plaintiff’s motion to file the First Amended Complaint (“FAC”) late. The Court ordered Plaintiff to file and serve the proposed FAC on or before September 4, 2018. Plaintiff timely filed the FAC on August 31, 2018, but did not serve Defendants with the FAC until September 24, 2018.

Defendants now move to strike the FAC pursuant to CCP § 436(b) on the grounds that the FAC was untimely served and Defendants also move to dismiss the entire action with prejudiced pursuant to CCP § 581(f)(2). There is no showing of prejudice to the moving party, nor is there an imminent trial date.

Under section 436, the court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading” as well as “all or part of any pleading not drawn or filed in conformity with the laws of this state.” (Code Civ. Proc, § 436, subds. (a) and (b).) While Plaintiff did not timely serve the FAC in accordance with the Court’s August 23, 2018, Order, Plaintiff did timely file the FAC. The Court is not persuaded that untimely service, which was only 20 days after the deadline set by the Court, warrants striking the entire FAC. Accordingly, the motion to strike the FAC is DENIED.

Under section 581(f)(2), the Court may dismiss a complaint when “after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.” First, the Court would observe that the statute addresses a failure to timely file an amended complaint, which is not presented here. Again, Defendants argue that because the FAC was served 20 days after the Court ordered deadline to file and serve the FAC, this warrants dismissal with prejudice of the entire action. In its discretion, the Court declines to dismiss the entire action with prejudice on the grounds of late service of the FAC. The Court is not persuaded that such a severe and drastic remedy is warranted under these circumstances. (See, e.g. Harlan v. Dept. of Transp. (2005) 132 Cal. App. 4th 868, 872 [delay of eight court days post the ordered deadline found brief and inconsequential.].)Further, the motion here was filed after service of the amended complaint on the defendant.

The Court declines Plaintiff’s request to issue on its own motion and Order to Show Cause why sanctions should not be imposed against Defendants pursuant to CCP § 128.7(c)(2).

The notice of motion does not provide notice of the Court’s tentative ruling system as required by Local Rule 1.06(D). Counsel is ordered to notify Plaintiff immediately of the tentative ruling system and to be available at the hearing, in person or by telephone, in the event Plaintiff appears without following the procedures set forth in Local Rule 1.06
(B).

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.